White House Declares Office Off-Limits
Administrator of Missing E-Mails Not Subject to Open-Records Law, It Says

By Dan Eggen
Washington Post Staff Writer
Thursday, August 23, 2007

The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of e-mails missing from White House servers.

The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.

Citizens for Responsibility and Ethics in Washington, a nonprofit group, filed a lawsuit in May seeking Office of Administration records about the missing e-mails, including when they were deleted from government computer files. CREW said it understood that internal White House documents had estimated at least 5 million e-mails were missing from March 2003 to October 2005.

The Bush administration has not provided a number publicly. Some of the records may have been subject to a document preservation law administered by the National Archives and Records Administration. Congress has sought access to them as part of its probe into the administration's firing of nine U.S. federal prosecutors in 2006.

Melanie Sloan, CREW's executive director, said that "one has to wonder if this is an effort by the White House to keep secret the details of how millions of White House e-mail suddenly went missing. The OA's disingenuous claim that it is not subject to the FOIA is contradicted by its own actions and statements."

White House spokesman Scott Stanzel declined to comment yesterday.

Much of the White House, including the offices of President Bush and Vice President Cheney, is not subject to FOIA, which allows the media and the public to demand disclosure of federal public records. But the Office of Administration, which was formed in 1977 and handles various administrative and technology duties, responded to 65 FOIA requests last year and even has its own FOIA officer, records show.

In its 20-page motion, the Justice Department argues that past behavior is irrelevant, pointing to a 1996 appellate court ruling that found the White House-based National Security Council was not covered by FOIA even though it had complied with the law previously.

As with the NSC, the government argues that the Office of Administration is not an "agency" as defined under the open-records statute because it has no substantial authority independent of the president.

"To be sure, OA currently has regulations implementing FOIA and has not taken the position in prior litigation that it is not subject to FOIA," the filing says. "However, the D.C. Circuit has held that this is not probative on the question of whether an EOP unit does, in fact, satisfy FOIA's definition of 'agency.' "

Steven Aftergood, director of the Project on Government Secrecy for the Federation of American Scientists, said that given the previous ruling on the NSC, the White House may be successful in its bid to close off its administrative office to public scrutiny.

"It's obnoxious, and it's a gesture of defiance against the norms of open government," Aftergood said. "But it turns out that a White House body can be an agency one day and cease to be one the next day, as absurd as it may seem."